What’s Wrong with the PBUS Agenda?

I just received a copy of the 2016 PBUS Winter Conference Agenda, and it includes a breakout session called “Lessons from Beyond New Jersey: Understanding the Arguments and Solutions of the New Generation of Bail Reform and Pretrial Release.” More specifically, it says the panel will “inform bail agents of the threatening arguments being made against the bail industry, arm agents with the ‘new’ vocabulary to use against such arguments and most importantly, educate bail agents about what solutions can be offered to minimize threats affecting the bail industry.” A good topic, right? What could possibly be wrong with it?

Well, for one thing, the person listed first on the panel is an insurance lobbyist who used to run the American Bail Coalition, which is no friend to bail agents. In fact, when I first started working in bail reform, ABC’s main stance was that there was no bail reform movement, there never would be, and that there was no reason for anyone to worry. It got that issue pretty wrong – the PBUS agenda is now calling it a “new generation of bail reform,” something I figured out and published five years ago. Since then, ABC has been wrong about a lot of things.

This generation of bail reform, as most of you now know, is not so much a fight against bail agents as it is a fight about money at bail – which is why the statement on the agenda of all the “threatening arguments against the bail industry” is so misleading. For example, I know the people working on the constitutional amendment in New Mexico, and they rarely talk about the commercial bail industry. Instead, they find fault with the lack of public safety in a money-based system and with secured financial conditions that not everyone can pay. So if you get to the panel on lessons from New Jersey and all they talk about is how to fight to keep things essentially the way they are today – with bail agents only involved with arbitrarily inflated financial conditions, with your focus only on court appearance and not public safety, and with insurance companies making money for doing nothing – then I hope you’ll ask them to give you some other ideas.

The real lesson from New Jersey – and now numerous other states – is that when people are fully educated in bail, they automatically move toward change, and that change involves adopting a risk-informed system of pretrial release and detention (both for assessment and supervision) using less or no money. This lesson is playing out across the country, and I can’t even keep up with the states, entities, and persons who are all going in the same direction. By arguing to keep things the way they are, ABC is on the wrong side of history.  

I’m about the only one saying this, but I’m being honest. A true private/public partnership in bail is only possible through what I call “private pretrial.” Some of my public pretrial friends don’t like when I mention it, and others don’t care because they don’t think you can pull it off. But I do, and I’ve seen it work. I’ve written about it enough that I don’t have to explain it here, but realize this: because the bail insurance companies wouldn’t exist in a “private pretrial” world, they’ll tell you that it’ll never work and convince you to keep fighting for the status quo.

Last month alone I worked with the White House, DOJ, five different states (of over 20 states that I worked with last year), and numerous public and private entities trying to “fix” bail, and they all intend to make major improvements because they don’t perceive anything valuable about the existing system. Meanwhile, the current head of ABC was on some funny little radio show calling bail reform “an epic battle” and arguing that if we dare to move from the way things are, we’ll be “setting a course for planet hell” and be required to create “state and local level U.S. Marshall’s Service” to go catch all the inevitable skips. Okay, maybe talk radio is made for hyperbole, but man, that last part is just plain crazy.

Don’t be fooled, bail agents. The bail insurance companies will use the “war against you” analogy simply to get you riled up to fight the bail insurance companies’ fight. But their fight is simply not in your interest. If you only believe one thing that I say, believe this: no matter what the bail insurance companies say, most states have decided that the current system – with all of those huge amounts of money based on charge – is fundamentally flawed, and so it’s going to change. Your goal should be to see where you fit into the new system. Arguing for the status quo, which is really the only argument the insurance companies have that will continue paying for their executives and their lobbyists, will ultimately only ensure that you’re not any part of the system we create.  

So what’s wrong with the PBUS agenda?  Well, from here it looks mostly as if the panelists on bail reform are going to try to convince you to fight to keep the status quo – to “arm” you with a new vocabulary, to help you to counter various arguments and to “minimize threats” to the way things work today. But they don’t seem to be offering any advice on how you can fit in when the country makes its inevitable shift. I won’t be there, but maybe you should ask them about all that. 

Bail Reform and Common Sense

When I was a boy growing up in the summer of 1968, my dad, who was asked to deliver a speech at the Republican National Convention that year told me, “You should always start off with a joke, and then hit them with your most important topic.” Last night, during the 2016 State of the Union Address, President Obama did just that. After the obligatory joke, the first substantive topic out of his mouth for the future was “criminal justice reform.”

Some journalists have written today that by merely mentioning it but not going into detail, the President was giving the topic the short shrift. But that’s not true. Criminal justice reform didn’t need an explanation. It didn’t need to be sold to Congress, and it certainly didn’t need to be justified to the American people. It’s a topic that is infinitely important in defining who we are as Americans and how we are seen by the rest of the world. It’s a topic that virtually everyone is behind, and that will most definitely happen. And it’s a topic that necessarily includes bail reform.

About a month ago, the White House and the Department of Justice co-hosted a meeting on fines, fees, and bail, which was designed to “build on the Administration’s commitment to criminal justice reform” by discussing and sharing ideas about how to implement “common sense reforms so that financial obligations imposed by the government do not lead to unnecessary involvement in the criminal justice system or exacerbate poverty.” It was a pointed meeting about money in the criminal justice system, and about how that money turns criminal justice on its head.   

Those of us bail types who were there provided an ample list of common sense things the federal government could do to help bring bail reform to both the federal and state systems. But I don’t think they needed a list. From the first speech by Attorney General Loretta Lynch, to one of the last by White House Counsel Neil Eggleston, it was clear that the White House and the Department of Justice had a firm grasp on how bail had been perverted in America since the mid-1800s into a detention-causing process through the use of secured money conditions. It was clear to them, as it is to virtually anyone else in America who does not profit from that system, that the current administration of bail is wrong and must be fixed.

In 1776, Thomas Paine published “Common Sense,” a pamphlet that inspired the American Colonies to declare independence from the tyranny of British rule. In the very first sentence of its introduction, Paine wrote: “A long habit of not thinking a thing wrong gives it a superficial appearance of being right, and raises at first a formidable outcry in defense of custom. But the tumult soon subsides. Time makes more converts than reason.”  To Paine, American independence not only made sense, it was also inevitable.

Bail reform is no different. For too long we have allowed our system of pretrial release and detention to be crafted to suit corporate insurance interests with no regard to whether using money even makes sense. Like Paine’s observation of British rule, we have simply spent too long not thinking money bail wrong – thereby giving it the unfortunate home court advantage of custom and habit. Moreover, by merely announcing a desire to base release and detention decisions on a common sense system of assessing a defendant’s actual pretrial risk versus his or her charge (which may or may not indicate risk), states are inviting the inevitable reform involved in crafting entirely new statutes and constitutional bail provisions that are currently based on charge.

My dad sometimes told me that you could end a speech with a joke, too, but I won’t because this is no joke. The secured money bail system not only causes countless harms to society, it defies virtually every notion of American freedom and equality that we defend in our founding documents. Its very existence makes us worse, and common sense dictates that we fix it now.  

The American Bail Coalition -- San Francisco and Beyond!

The American Bail Coalition just sent out a memo trying to put bail agents at ease in the face of a growing number of federal lawsuits undoing money bail in America. In it, ABC raises a few points that are worth a second look if you’re a bail agent.

First, ABC says that the San Francisco suit is only about bail schedules, and not about abolishing what a recent article called “cash bail,” necessarily extending to surety bonds. Later, though, ABC says it helped the California Bail Agents with its motion to intervene in San Francisco, and that particular motion states: “If Plaintiffs’ requested preliminary injunction is granted, Proposed Intervenors’ entire industry would be destroyed” and “Not only would that destroy Proposed Intervenors’ entire industry, but it could undo thousands of existing bail surety contracts whose purpose would be declared unconstitutional.” ABC knows what’s going on. They just don’t want you bail agents to figure it all out.

Second, ABC says that it’s worked tirelessly with virtually every criminal justice stakeholder group to oppose the federal suits. Really? Why, then, has virtually every criminal justice stakeholder’s national organization published policy statements advocating adopting a risk based versus a money based system? Believe me, ABC is alone in this thing. It’s their lobbyist working with its member insurance companies’ other lobbyists trying to figure out a way to keep the money rolling in.

Third, ABC says that it’s prepared all kinds of legal documents that it wanted to get into some earlier federal cases, but it couldn’t because those suits were settled too fast. Yeah, right. I’ve been watching ABC for a while now, and it has mostly regurgitated the same tired arguments for the current system (ABC calls them showing the "fatal flaws" in the claims of reformers) and has consistently lost by doing so. It lost here in Colorado, it lost in New Jersey, it lost in New Mexico, it lost in Wisconsin, it lost in Indiana, it lost in Utah, and it’s losing in virtually every state it jumps into. If there are "fatal flaws," as ABC says, don't you think it would win every so often? So ABC will continue to lose – and to take bail agents down with it – as long as it continues to argue for the status quo. “The American Bail System works,” ABC says, but that’s absolutely false. The American bail system hasn’t worked since 1900, which is why we’ve witnessed generation after generation of bail reform since then. Think about it, bail agents, if it were working, would some 25-30 states be calling me asking how to change their entire bail statutes and constitutional bail provisions?  Saying that bail is working when everyone else says it isn’t working makes people think that the insurance companies don’t have a clue.

Finally, ABC says it’s hiring (meaning that it’s using the money that you bail agents give them to hire) “national federal litigation counsel” to try to get into these suits so they can further argue the status quo in court.  Now I used to work for the federal courts, including for the federal court of appeals, and intervening into a suit isn’t the easiest thing to do. Think of it this way. At their core, the suits are challenging judicial bail setting practices (some admittedly delegated). Does that mean we let everyone in the suit who has some remote interest in bail setting? Do we let in the GPS monitor manufacturers? How about drug testers? How about the people who make lunches for the inmates in jail? For goodness sake, if we lower the jail population, that lunch-making industry might fail.  

The bottom line is that the bail industry is tangential to the actual decision to release or detain a defendant. To the extent that it isn’t – meaning to the extent that the bail industry has actually usurped the judicial decision itself – then it shouldn’t be allowed to exist in that form anyway. And what if ABC does get in? Well, even then it’ll probably just keep saying the same old stuff – “money bail works,” “money bail’s fair,” “everyone else is wrong.” They’ll keep spending money to say these things right up until they’re making exactly the same amount of money that they’re paying their last lobbyist. And even then, they’ll probably just hire a cheaper lobbyist. 

ABC wrote a funny line at the end of its document. It said that those of us seeking change are “bastardizing” our criminal justice system and “abandoning the American bail system.” Not true. The changes that we seek – and by “we” I mean people like me and all of those stakeholders I mentioned earlier – are based on fundamental constitutional and historical American legal notions, such as due process, equal protection, the right to bail, and the presumption of innocence. If it takes a federal court to tell the states just how far from these notions they have strayed, then so be it. Moreover, we aren’t abandoning the American bail system. No, we’re just returning to the American bail system that existed before the commercial bail industry got involved, when unsecured bonds assured that virtually every bailable defendant would not be jailed for failure to pay money.      

ABC is spending a lot of time and money to keep things the way they are. The problem is that nobody else in America wants to keep things the way they are. If I were a bail agent, I’d try to figure out how much money I give the insurance companies, and then I would spend that money, instead, on redefining my role in pretrial release and detention in America. There may be a place for private pretrial in America, but the window for finding that place is rapidly closing. By refusing to accurately see the future, ABC is practically slamming that window shut.